Opinion Number

Dear Mr. Cassidy:

We are in receipt of your request for an Attorney General's opinion regarding the qualifications of the Mayor-elect of Elton, Louisiana.

Your request for an opinion states that you received a complaint alleging that the Mayor-elect, Mr. Roger "Tony" Laughlin, neither resides within the city limits of the jurisdiction in which he was elected, nor lives within the parish of Jefferson Davis. Under R.S. 18:671 et seq., the proper official is required to investigate a written complaint that an officeholder no longer meets the residence or domicile requirements of his office. Since you discussed this matter with the Mayor-elect prior to the election, you have recused your office from this matter and seek a determination from the Attorney General as to whether Mr. Laughlin meets the residence or domicile requirements of the office of Mayor, Town of Elton, Louisiana.

A vacancy is created in an elective office "[w]hen the person elected to or holding the office no longer meets the residence or domicile requirements of that office . . .". R.S. 18:581(1). The Town of Elton is governed by the provisions of the Lawrason Act, R.S. 33:321 et seq. The qualifications of mayor are as follows:

The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality. (Emphasis added). R.S. 33:384

R.S. 18:101 provides for the registration to vote, which qualifications include citizenship of Louisiana (not disfranchised), 18 years of age, and actual bonafide residency of this state, and the parish, municipality, if any, and precinct in which the person offers to register as a voter.

The Investigations Division of the Attorney General's office conducted a thorough investigation of this matter. The report finds that Mr. Laughlin changed his domicile to 1606 Fletcher Street, Elton, Louisiana, which is in Jefferson Davis Parish on July 16, 1997. Mr. Laughlin changed his homestead exemption from Allen Parish (where he has a residence at 4643 Powell Road) to Jefferson Davis Parish and is current on all property taxes owed on other properties. Mr. Laughlin is registered to vote at the 1606 Fletcher Street address, and his driver's license is issued at this address.

Since R.S. 33:384 requires the mayor to "[b]e and elector of the municipality . . .", and our investigation concludes that Mr. Laughlin is in fact an elector of the municipality, it is our opinion that there is no basis in law or in fact upon which a suit could be instituted to obtain a judgment declaring the office of Mayor, Town of Elton, vacant. Nor do the Board of Aldermen have any grounds to declare a vacancy in the office of mayor under the provisions of the Election Code and Williamson v.Village of Baskin, 339 So.2d 474. See also, Attorney General Opinions 77-932, 79-1343, and 92-262. (Copies enclosed herein).

If we can be of further assistance, please advise.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

______________________________ ANGIE ROGERS LaPLACE
Assistant Attorney General

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Enclosures

cc: Mr. Roger "Tony" Laughlin Nelson Robles

DATE RECEIVED: FEBRUARY 10, 1999

DATE RELEASED:

ANGIE ROGERS LAPLACE ASSISTANT ATTORNEY GENERAL

State of Louisiana Department of Justice
WILLIAM J. GUSTE, JR. Baton Rouge ATTORNEY GENERAL 70804

November 26, 1979 OPINION NUMBER 79-1343 77 — OFFICERS-LOCAL MUNICIPAL R.S. 33:384

Honorable Nick Erdey When a mayor moves outside the Mayor, Town of Livingston corporate limits of the the town Post Office Box 426 he represents, a vacancy is not Livingston, Louisiana 70754 automatically created. However, such a move does give grounds for the Board of Alderman to declare a vacancy to fill vacancy according to law.

Dear Mayor Spillers:

In your opinion request of June 21, 1977, you asked whether you could still serve as mayor of the Town of Chatham while residing outside the town limits.

R.S. 33:384 states, "The mayor shall be a qualified elector of the municipality, and he must have been a resident of the parish for two years." This statute, however, does not address itself to the circumstances of a mayor moving from the municipality after his election.

The old 1921 Constitution of Louisiana, Article VIII, Section 13, mandated that the office of mayor would become vacant if the incumbent moved his residence outside the town. However, this provision was not carried forward when the 1974 constitution was adopted.

Presently, the only applicable constitutional provision is Article X, Section 28 of the 1974 Constitution which defines a "vacancy" as follows:

A vacancy, as used in this Constitution, shall occur in the event of death, resignation, removal by any means, or failure to take office for any reason.

In the recent case of Williamson v. Village of Baskin, La. App., 339 So.2d 474, the Second Circuit Court of Appeals interpreted this provision. The Court said, "The fact of change of residence may, ipso facto, automatically give grounds for having an office declared vacated and the officer removed, but it cannot be said that the office is vacated until such is declared by a court or other authorized official or governing body." The Supreme Court denied writs.

Hon. H. Alton Spillers, Jr. Opinion No. 77-932 June 24, 1977 *Page 2

On the basis of the Williamson decision and an application of R.S. 33:384, we are of the opinion the office of mayor will not automatically become vacant upon your moving outside the city limits. You may continue to serve your term as Mayor of Chatham as long as your office is not declared vacant. Any time after you move outside of town the town council has grounds to declare the office of mayor vacant and proceed with a special election.

It should be noted R.S. 33:384 would prohibit your running for mayor again after you move outside of town.

It is hoped this opinion has answered your question. If we can be of further assistance, please contact us.

Sincerely,

WILLIAM J. GUSTE, JR ATTORNEY GENERAL

BY: TOMMY D. TEAGUE STAFF ATTORNEY

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State of Louisiana DEPARTMENT OF JUSTICE
RICHARD P. IEYOUB Baton Rouge P.O. Box 94005 ATTORNEY GENERAL 70804-9005 TEL: (504) 342-7013 FAX: (504) 342-7335

MAY 12, 1992 OPINION NUMBER 92-262
Mr. Lewis B. Richardson, Alderman OPINION NO. 92-262 Village of Grand Cane 27 ELECTIONS, CANDIDATES, ETC. P. O. Box 82 71 MUNICIPALITIES Grand Cane, Louisiana 71032 77 OFFICERS LSA-R.S. 33:321; R.S. 33:384; R.S. 18:581(1); R.S. 18:602(A); R.S. 18:602(2) (a)

A vacancy in the office of mayor occurs when he no longer meets the domicile requirements of the office. The Board of Aldermen, as governing body, must timely appoint a qualified person to fill the vacancy. If the unexpired term exceeds one year, the Board of Aldermen must issue a proclamation calling for a special election to fill the vacancy.

Dear Mr. Richardson:

This office is in receipt of your letter dated April 9, 1992, signed by Linda Brown, Seth Rutherford, and yourself. Your opinion request has been assigned to me for research and reply.

As you related to me in our telephone conversation, the present Mayor of Grand Cane is planning to move outside the territorial limits of the village. The proposed move raises the issue of whether a vacancy will be created in the office of mayor and whether an election must be held to fill this vacancy. Finally, you state the mayor may retain ownership of his home within the village and inquire whether this fact will have any bearing on our conclusion.

The Village of Grand Cane is a Lawrason Act municipality and is governed by the provisions of LSA-R.S. 33:321, et seq. LSA-R.S. 33:384 provides:

"The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled for at least the immediately preceding year in the municipality." (Emphasis added).

A vacancy in the office of mayor occurs when the official no longer meets the domicile requirements of the office. LSA-R.S.18:581 (1) provides in part:

"A `vacancy' occurs in an elective office when. . . . . . . the person elected to or holding the office no longer meets the residence or domicile requirements of that of declaration of retention of domicile to the contrary notwithstanding." (Emphasis added).

Mr. Lewis B. Richardson OPINION NUMBER 92-262 *Page -2-

The crucial issue is whether or not the mayor will retain his domicile within the municipal limits. You stated that he may retain ownership of his home, but this is not the determinative factor.

Domicile is defined in LSA-C.C. art. 38:

"The domicile of each citizen is in the parish wherein he has his principal establishment. The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected."

Domicile is determined by two elements, residence and the intent to make that one's principal establishment. Habig v. Popeye'sInc., 553 So.2d 963 (La.App. 4th Cir. 1989). Factual considerations in this determination include where the person sleeps, takes his meals, has established his household, and surrounds himself with family and the comforts of domestic life.Charbonnet v. Hayes, 318 So.2d 917 (La.App. 4th Cir. 1975); Mixv. Blanchard, 318 So.2d 125 (La.App. 4th Cir. 1975).

As you state in your letter, the present mayor has not moved from his present domicile and no vacancy presently exists. When the mayor does move, the Board of Aldermen as governing body must carefully consider whether the mayor has in fact changed hisdomicile. The terms "residence" and "domicile" are not synonymous. A person can have several residences, but only one domicile. Wilson v. Butler, 513 So.2d 304 (La.App. 1st Cir. 1987).

If the determination is made by the Board of Aldermen that a vacancy has occurred, the board must appoint a person to fill the vacancy who meets the qualifications of the office. The appointment must be made within ten days of the vacancy. LSA-R.S.18:602(A). Finally, if the unexpired term exceeds one year, the board must issue a proclamation calling for a special election to fill the vacancy and replace the temporary appointee. This proclamation also must issue within ten days of the vacancy. LSA-R.S. 18:602(2) (a).

Mr. Lewis B. Richardson OPINION NUMBER 92-262 *Page -3-

In summary, the board must carefully consider all factors surrounding the mayor's move to determine if his intent is to change his domicile. If the board determines that a vacancy has occurred, the board must timely appoint a qualified person to fill the vacancy. Should the unexpired term exceed one year, the board must also issue a proclamation calling for a special election to fill the office.

We hope this interpretation will be of assistance to you. If you have any further questions, please contact our office.

Yours very truly,

RICHARD P. IEYOUB Attorney General

BY: _____________________________ Kerry L. Kilpatrick Assistant Attorney General

RPI/KLR/ams 0074E

Dear Mr. Erdey:

In your letter of November 19, 1979, you state that your term or office as Mayor of the Town of Livingston will expire on June 30, 1980. You state you do not intend to seek re-election. In light of these facts, you ask whether it would be permissible for you to move your residence outside the corporate limits of the Town of Livingston without losing your eligibility to serve the remainder of your term.

R.S. 33:384 states, "The mayor shall be a qualified elector of the municipality, and he must have been a resident of the parish for two years."

This statute requires the mayor to be a resident of the municipality which he serves. However, no vacancy will be automatically created in the office of mayor if you move outside the city limits. However, such a move would be grounds for the Board of Aldermen of the Town of Livingston to declare a vacancy in the office of mayor and appoint someone to fill the remainder or the term. (Williamson vs. Village of Baskin, 339 So.2d 474)

It is hoped this opinion has answered your questions. If we can be of further assistance, please contact us.

Sincerely yours,

WILLIAM J. GUSTE, JR. ATTORNEY GENERAL

BY: TOMMY D. TEAGUE STAFF ATTORNEY

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77-932

77 — OFFICERS — Local Municipal; Selection, Qualifications State of Louisiana Tenure Vancancies DEPARTMENT OF JUSTICE 1974 Louisiana Constitution Art. 10 Sec. 28
WILLIAM J. GUSTE, JR Baton Rouge R.S. 33:384
ATTORNEY GENERAL 70804 Art 10. Sec. 28 June 24, 1977 A vacancy does not automatically occur when mayor of Lawrenson OPINION NO. 77-932 Act municipality moves outside of town. However, town council has grounds to declare a vacancy and proceed with a special election.
Honorable H. Alton Spillers, Jr. Mayor, Town of Chatham Chatham, Louisiana 71226